SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA

AND

THE MICHIGAN DEPARTMENT OF HUMAN SERVICES

DEPARTMENT OF JUSTICE COMPLAINT NUMBER 204-37-228

1. This matter was initiated by two complaints filed with the United States Department of Justice (“Department”) or (“United States”), against the Michigan Department of Human Services (“MDHS”). The complaints alleged that the MDHS violated Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131-12134, by denying qualified individuals with disabilities an equal opportunity to participate in or benefit from the services, programs, or activities of the MDHS.

2. The Department of Justice is authorized under 28 C.F.R. Part 35, Subpart F, to investigate the allegations of the complaints in these matters, and to determine MDHS compliance with Title II of the ADA and the Department’s implementing Title II regulation. Also, the Department is authorized to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized under 42 U.S.C. § 12133, to bring a civil action enforcing Title II of the ADA, should the Department fail to secure voluntary compliance pursuant to subpart F. In consideration of the terms of this Agreement as set forth below, the Attorney General agrees to refrain from undertaking further investigation or from filing civil suit in this matter.

3. The parties to this Settlement Agreement (“Agreement”) are the United States of America and the Michigan Department of Human Services. In order to secure compliance by voluntary means and to avoid the burdens and expenses of possible litigation, the parties hereby agree as follows:

4. The ADA applies to MDHS because it is a public entity as defined in Title II of the ADA. 42 U.S.C. § 12131 and 28 C.F.R. § 35.104

5. The Department asserts that MDHS violated title II of the ADA by failing to provide qualified interpreters to parents and children, who are deaf or hard of hearing, during interviews by MDHS case workers in child abuse and neglect investigations.

6. MDHS position is that it did not violate Title II of the ADA or its implementing regulation and that its willingness to enter into this settlement agreement is not to be construed as an admission of wrong-doing or liability, which it expressly denies.

Factual Background:

7. The Department received two complaints from parents who are deaf and who were denied interpreters on more than one occasion when interviewed by MDHS case workers even though qualified interpreters were necessary for effective communication. Specifically, these complaints stem from allegations that:

a. A MDHS case worker conducted interviews of a deaf parent whose children were alleged victims of child abuse without an interpreter even though a qualified interpreter was allegedly necessary for effective communication;

b. A MDHS case worker interviewed a deaf parent accused of child neglect and her deaf children without an interpreter even though during the interviews a qualified interpreter was allegedly necessary for effective communication;

Legal Standards:

8. Title II of the ADA and its implementing regulation prohibit discrimination against qualified individuals with disabilities on the basis of disability in the services, programs, and activities of a public entity, such as MDHS. 28 C.F.R. § 35.130(a).

9. Title II of the ADA and its implementing regulation requires public entities, such as, the MDHS to furnish appropriate auxiliary aids and services when necessary to afford an individual who is deaf or hard of hearing with an equal opportunity to participate in, and enjoy the benefits of, MDHS services, programs, or activities. 28 C.F.R. § 35.160(b)(1).

Actions by MDHS:

10. In order to take steps to make sure that qualified individuals with disabilities participate in and benefit from its programs, services, and activities, MDHS agrees to the following:

11. Within one hundred and twenty days of the effective date of this Agreement, MDHS agrees to adopt Appendix A as its new policy on Effective Communication. In addition, MDHS agrees to distribute a copy of its new policy on Effective Communication to its employees. MDHS further agrees not to modify its Effective Communication policy without the consent of the Department.

12. Within forty-five days of the effective date of this Agreement, MDHS agrees to update its MDHS Hotline numbers, its web site, and any other pertinent literature that is disseminated to the public to include a TTY number and the Michigan Relay Number.

13. MDHS agrees to use the revised Form 3200 which directs case workers in the instruction section of Form 3200 to indicate if a child, parent, or other individual they need to interview in a child abuse and/or neglect investigation has a disability and requires appropriate auxiliary aids and services, such as qualified interpreters, for effective communication.

14. Within one hundred and twenty days of the effective date of this Agreement, MDHS will instruct all of its employees, including case workers and managers, who are responsible for conducting programs, activities, and services to comply with the provisions of this Agreement.

15. Within one hundred and twenty days of the effective date of this Agreement and pursuant to its obligations under Title II, MDHS will make available to its employees, applicants, beneficiaries, interested persons and the general public, information regarding the provisions of Title II and the law’s applicability to the programs, services, and activities of MDHS by means of a public notice. This public notice or its equivalent will be included in all current printings of MDHS posters. The following notice or an equivalent notice will also be included in future MDHS posters, and will appear on MDHS web site:

In accordance with the requirements of title II of the ADA of 1990, MDHS does not discriminate against qualified individuals with disabilities on the basis of disability in MDHS services, programs, or activities. MDHS provides and pays for appropriate auxiliary aids and services, including qualified interpreters, whenever necessary to ensure effective communication with members of the public, including but not limited to participants at hearings who are deaf or hard of hearing. Mary Hall-Thiam, MDHS ADA Coordinator, is the employee designated as responsible for coordinating MDHS efforts to comply with and carry out the provisions of Title II of the ADA. To request appropriate auxiliary aids and services, please contact the Director in your respective local MDHS office. If your Director is unable to assist you, he/she will forward the matter to Ms. Hall-Thiam for final resolution. Ms. Hall-Thiam can be reached at the Office of Equal Opportunity and Diversity Programs, 235 S. Grand Avenue, Suite 1412, Lansing, MI 48909, (517) 373-8520; or call [TTY number (517) 373-8521 or use the Michigan Relay System 1(800)-649-3777].

16. MDHS is not required to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of MDHS believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, MDHS has the burden of proving that compliance with the effective communication requirements would result in such alteration or burdens.

17. MDHS agrees to train all of its managers on the ADA, annually, at their regional meetings which generally last three hours. MDHS further agrees to devote an hour of the training on the ADA, and on MDHS’ requirement to provide appropriate auxiliary aids and services, including qualified sign language interpreters, when they are necessary for effective communication.

18. MDHS agrees that its managers and supervisors will continue to meet with their staff when they receive new training or when new policies are released to ensure the correct interpretation of the policies.

Reporting and Monitoring:

19. Within one hundred and twenty days of the effective date of this Agreement, MDHS will submit a report to the Department detailing the actions it has taken to comply with the preceding provisions. This report will include copies of pamphlets, posters, and Internet web site notices.

20. MDHS will provide copies of any complaints that they received from individuals who are deaf or hard of hearing and who requested but were denied qualified interpreters during meetings and interviews with MDHS case workers. This documentation should reflect whether and how the complaint was resolved and will be retained by MDHS. MDHS should provide the Department with copies in six-month increments, during the next three years, in order to assist the parties in assessing whether the modifications to MDHS practices are effective.

Enforcement:

21. The United States may review compliance with this Agreement at any time and may enforce this Agreement if the United States believes that it or any requirement thereof has been violated. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concern(s) with MDHS and the parties will attempt to resolve the concern(s) in good faith. The United States will give MDHS 30 days from the date it notifies MDHS of any breach of this Agreement to cure that breach, prior to instituting any court action.

22. Failure by the United States to enforce any provision or deadline of this Agreement shall not be construed as a waiver of its right to enforce other provisions or deadlines of this Agreement.

23. Copies of this Agreement, and any information contained in it, may be made available to any person at any time. The United States and MDHS shall provide copies of this Agreement to any person upon request.

24. This Agreement shall remain in effect for a period of three years from its effective date.

The effective date of this Agreement is the date of the last signature below.

25. This Agreement constitutes the entire Agreement between the parties relating to Department of Justice No. 204-37-228 and no other statement, promise, or agreement, either written or oral, made by either party or agents of any party, that is not contained in this written Agreement, including its attachments, shall be enforceable.

26. This Agreement is limited to the issues set forth herein. This Agreement does not purport to remedy any other potential violations of the ADA or any other Federal law. This Agreement does not purport to list all violations, if there are any, of the ADA by MDHS.

27. This Agreement does not affect MDHS continuing responsibility to comply with all aspects of title II of the ADA.

28. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect.

29. Signatories of this Agreement on behalf of the parties represent that they are authorized to bind the parties to this Agreement.

Deaf and hard of hearing applicants and recipients of all agency programs are to be informed that the agency will arrange and pay for accommodations needed for effective communication at all interviews, meetings, hearings, or when requested by the client. Applicants or clients must also be made aware that a Text Telephone (TTY) exists for the MDHS office they are attempting toaccess, or they may use the Michigan Relay System (1-800-649-3777).

In selecting the appropriate auxiliary aid or service involving an individual who is deaf or hard of hearing, MDHS will give the individual who is deaf or hard of hearing the opportunity to request the auxiliary aid or service of his or her choice. Primary consideration will be given to the expressed choice of the individual unless it can be shown that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental alteration in the service, program, or activity or in undue financial and administrative burdens.

MDHS offices will secure the requested accommodation for the date, time, and place where the service will be required. When interpreters are requested, qualified interpreters are required. Qualified interpreters are interpreters who are able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.[1]

Michigan’s Division on Deafness (DOD) within the Commission on Disability Concerns is available to provide technical assistance on issues relating to effective communication. DOD also publishes a directory of interpreter referral agencies and private practice interpreters. This directory is sent to each local office and institution upon request.

At the date, place and time determined, and prior to continuing with the proceeding, MDHS employees will inquire of the deaf or hard of hearing person, through the interpreter, if the interpreter’s skills will ensure effective and accurate interpreting of the proceedings for them. If the question is answered in the negative, the proceedings will be suspended until a more qualified interpreter is obtained. (Exception to following this procedure may be in an emergency situation such as a protective services investigation where safety is an issue).

Hard of hearing clients may request an assistive listening device for clearer communication. The device allows for amplification of voiced messages without magnifying background sounds. A quiet room may also assist in better communication between parties. In some circumstances a notepad and written materials may be sufficient to permit effective communication, in other circumstances they may not be sufficient. For example, a qualified interpreter may be necessary when the information being communicated is complex, or is exchanged for a lengthy period of time or involves heightened emotions. Generally, factors to be considered in determining whether an interpreter is required include the context in which the communication is taking place, the number of people involved, and the importance of the communication.

If requested by the deaf or hard of hearing person or the Administrative Law Judge determines that an interpreter is needed, a qualified interpreter shall be used for administrative hearings (Food Stamps, Medicaid, etc.) and other due process hearings.

A qualified interpreter identified by the local office and listed in the DIRECTORY OF INTERPRETERS FOR THE DEAF, STATE OF MICHIGAN or a third party adult identified by the local office and known in the community as a qualified interpreter may also be used to interpret for a deaf or hard of hearing participant.

A deaf or hard of hearing participant may also choose to use a family member, a friend, or a neighbor to interpret or facilitate communication with MDHS’s personnel if the family member, friend, or neighbor wishes to provide such assistance and if such use is necessary or appropriate under the circumstances, giving appropriate consideration to any privacy issues that may arise.

This provision in no way lessens MDHS’s obligation to provide and pay for appropriate auxiliary aids and services, including qualified sign language interpreters as required by federal law.

In those instances where communication is an issue after normal business hours, the use of note taking will only be sufficient if it provides effective communication to the individual who is deaf or hard of hearing.

[1] When interpreters are requested, certified interpreters are highly recommended. Certified interpreters have current cards in their possession showing their certification or qualification levels. The cards also show that the interpreters are current in the field, follow the Registry of Interpreters for the Deaf Code of Ethics, will keep information about the assignment confidential and will remain impartial.